BVA9512719
DOCKET NO. 90-51 810 ) DATE
)
)
On appeal from the decision of the
Department of Veterans Affairs Regional Office in Atlanta,
Georgia.
THE ISSUE
Whether the veteran is basically eligible for educational
assistance benefits pursuant to Chapter 30, Title 38, United
States Code.
ATTORNEY FOR THE BOARD
J.P. Reep, Associate Counsel
INTRODUCTION
The veteran had active military service from July 24, 1967 to
December 31, 1987.
This matter came before the Board of Veterans' Appeals (the
Board) on appeal from a determination of the Winston-Salem,
North Carolina Regional Office (RO) of the Department of
Veterans Affairs (VA), that the veteran is ineligible for
Chapter 30 educational benefits. This appeal has been
processed by the Atlanta, Georgia RO.
In April 1991, the Board remanded this case to the RO for
further evidentiary development. Following that development,
the case was returned to the Board in May 1995.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that he is entitled to Chapter 30
educational benefits, as derived from his entitlement to
Chapter 34 benefits. He maintains that an error occurred
during the process of establishing eligibility for Chapter 30
benefits. He also maintains that Air Force regulations
required his retirement, effective January 1, 1988, after he
rejected an overseas assignment.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran's claims file.
Based on its review of the relevant evidence in this matter,
and for the following reasons and bases, it is the decision
of the Board that the claim for entitlement to Chapter 30
educational benefits is not permitted by law, and must
therefore be denied.
FINDINGS OF FACT
1. The veteran voluntarily retired from active service,
after serving for a period of 30 months following June 30,
1985.
2. The veteran was not discharged for a service-connected
disability, a medical condition which pre-existed his service
on active duty, hardship, or a physical or mental condition
that was not characterized as a disability, and he was not
discharged involuntarily because of a reduction in force.
3. The service department has stated that the veteran's
discharge on December 31, 1987 was not considered a discharge
for the convenience of the Government.
CONCLUSION OF LAW
The legal requirements for basic eligibility to receive
educational assistance benefits pursuant to Chapter 30, Title
38, United States Code, are not met. 38 U.S.C.A.
§ 3011(a)(1)(B) (West 1991); 38 C.F.R. § 21.7044(a) (1994).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Board acknowledges the veteran's contentions concerning
his separation from the military and his length of military
service. However, the law and regulations in this case are
clear and specific, and the Board is bound by them.
As pertinent in this case, the law provides that an
individual who had unused entitlement to Chapter 34
educational benefits on December 31, 1989, may be eligible to
receive educational benefits pursuant to Chapter 30, Title
38, United States Code, provided that individual had served
on active duty between October 19, 1984, and July 1, 1985,
and had served at least three years of continuous active duty
after June 30, 1985. 38 U.S.C.A. § 3011(a)(1)(B) (West
1991); 38 C.F.R. § 21.7044(a) (1994).
The evidence of record establishes that the veteran served on
active duty from July 24, 1967 to December 1, 1987, less than
three years of continuous duty after June 30, 1985.
Under 38 U.S.C.A. § 3011(a)(1)(B)(ii) and 38 C.F.R.
§ 21.7044(a)(4)(ii), a claimant who had less than least three
years of continuous active duty after June 30, 1985 may
nevertheless be eligible for Chapter 30 benefits, provided
one of the following conditions are met:
1. If the claimant received an honorable
discharge for one of the following: a service-
connected disability, a medical condition which
pre-existed service, hardship, or a physical or
mental condition that was not characterized as a
disability.
2. If a claimant was involuntarily discharged for
the convenience of the Government as a result of a
reduction in force, as determined by the Secretary
of the service department concerned.
3. If a claimant was discharged for the
convenience of the Government, and completed not
less than 30 months of continuous active duty
after June 30, 1985.
The veteran does not satisfy any of the foregoing conditions.
A Department of Defense Form DD-214 shows that he was
honorably discharged for the following reason: voluntary
retirement for years of service established by law. A
May 1991 report of contact indicates that, following contact
with the Department of Defense, it was learned that the
veteran was separated under the authority of Air Force
Regulation 35-7, and that Air Force regulations do not allow
for convenience of government discharges in retirement cases.
We recognize the veteran’s statement on one occasion that he
was “required” to retire. However, we note that, on his VA
Form 1-9, received in October 1990, the veteran indicates
that he elected to retire in January 1988. In any event, the
record establishes that he was not separated for the
convenience of the Government. Accordingly, he does not meet
the conditions set forth in paragraphs 2 and 3.
Regarding the conditions set forth in paragraph 1, we note
that the record does not establish that the veteran was
discharged from active duty for a service-connected
disability, for a medical condition which pre-existed his
service on active duty, for hardship, or for a physical or
mental condition that was not characterized as a disability.
Rather, it is clear that he voluntarily retired from service.
The provisions of 38 U.S.C.A. § 3011(a)(1)(B) and 38 C.F.R.
§ 21.7044(a)(4) do not confer eligibility for Chapter 30
educational benefits in this case. Because the veteran does
not meet the applicable criteria provided by law, this case
must be denied. The law is dispositive in this case. See
Sabonis v. Brown, 6 Vet.App. 426 (1994).
ORDER
The claim for entitlement to Chapter 30 educational benefits
is denied.
D. C. SPICKLER
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on appeal
is appealable to the United States Court of Veterans Appeals
within 120 days from the date of mailing of notice of the
decision, provided that a Notice of Disagreement concerning
an issue which was before the Board was filed with the agency
of original jurisdiction on or after November 18, 1988.
Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402
(1988). The date which appears on the face of this decision
constitutes the date of mailing and the copy of this decision
which you have received is your notice of the action taken on
your appeal by the Board of Veterans' Appeals.